Slovenia has long sought to be considered an arbitration-friendly place. The New York Convention has been a part of Slovenia's legal system since its ratification in October 1981 by the former Yugoslavia, which Slovenia succeeded. In 2008, a modern Arbitration Act was adopted on the basis of the UNCITRAL Model Law, which unified the rules for both domestic and international arbitrations. In recent years, national courts have also warmed up to arbitration and began supporting it in every possible way.
Oddly enough, one aspect lagged: Enforceability of arbitration agreements after initiation of fast-track enforcement. In addition to ordinary enforcement proceedings (initiated on the basis of an enforceable title, such as judgments or arbitral awards), the Slovenian Civil Claims Enforcement Act provides for enforcement on the basis of authentic documents ("fasttrack enforcement").
A creditor may initiate such proceedings merely by designating an authentic document (usually invoices), and the enforcement court will immediately, without assessing any facts or reviewing any documents, issue a writ of execution. In cases where the debtor objects, the writ is rescinded, the matter is automatically referred to competent courts for litigation proceedings,and the full court fee is payable.
And there laid the catch: By filing for fasttrack enforcement, does the creditor waive the arbitration agreement? This certainly would not apply to (domestic) choice of court agreements, where the creditor has the option to refer to it in the application. Was there anything a creditor could do or have done to avert national courts and instead go to arbitration? According to some courts, the answer is no. The creditor was deemed to have waived the arbitration agreement, got stuck litigating the matter in the Slovenian courts, and became liable for payment of the full court fee. In the best case scenario, claimants could only withdraw the claim (without prejudice) if the respondents consented, and even in such cases, only two thirds of the court fees would be returned. An express reference to an arbitration agreement in an attachment to the application for fast-track enforcement or a side-letter was not even enough to persuade some courts. The web form and developer's decision on what fields to include in the application prevailed.
In essence, what began as an entirely technical matter – a deficiency of the online application used for the filing of fast-track enforcement proposals, which only allowed reference to be made to (Slovenian) court selection agreements – resulted in serious adverse legal consequences.
In 2015, this deficiency was finally recognized by the National Assembly. The law was amended to expressly give creditors a right to refer to arbitration agreements, the web application was supplemented, and as of 15 July 2015, creditors were finally able to clearly inform the court that in cases where the debtors object to the writ of execution (and even if they do not challenge jurisdiction of the Slovenian courts), the enforcement court should dismiss the matter (without prejudice) instead of referring it to other competent Slovenian courts.
Thus, Slovenia made another – small yet important – step towards being recognized as an arbitration-friendly jurisdiction. Perhaps unintentionally, by adopting the described amendment, the legislature granted additional favourable treatment to arbitration agreements over choice of foreign court agreements: the latter were not addressed and are apparently still incompatible with fast-track enforcement.